from the well,-that's-one-way-to-go-about-it dept

With the possibility of comprehensive copyright reform in the US in the air, we warned that lobbyists from all sides were about to be very, very busy on Capitol Hill, and it has already begun. We've heard from very reliable sources that the MPAA has basically been blanketing Congress with the attached document, visiting as many offices as possible and leaving it behind as their talking points on why copyright is just freaking awesome.

Of course, since this is the MPAA, the document is all sorts of misleading. Let's dig in a bit, shall we?

From the printing press, to motion pictures, to recorded sound, to the Internet, for its entire history, copyright law has evolved and developed in response to new developments in technology and the marketplace.

Well, that's one way to look at. Another would be, from the player piano, to radio, to TV, to the photocopier, to cable TV, to the VCR, to the MP3 player, to the DVR, to internet video, the entertainment industry has flipped out and used copyright law to try to block the development of new technology and marketplaces, often against their own best interests. Given that, you'd think that we'd know by now to take the entertainment industry's claims about copyright law and new technologies with a rather large grain of salt.

The result is that today the U.S. copyright system is a cornerstone of a vibrant creative economy that is unparalleled in the world – adding $631 billion and over 7.5 million direct and indirect jobs in 2010 [Department of Commerce, IP and the U.S. Economy study], and making the United States a world leader in creativity, technological innovation and economic growth.

It wouldn't be the MPAA if it didn't come chock full of bogus stats. First up, the Commerce Department report -- also known as the grocery store report, because it counts all 2.5 million employees of grocery stores as being the single largest employer in the "IP intensive industry." Because, you know, without strong IP laws, that checkout bagger wouldn't have a job. Of course, this highlights why the whole Commerce Department report is useless. It first broadly defines "IP intensive industries" in ways that are simply not credible (see above: Stores, Grocery), and then, ridiculously, suggests that all of the jobs in those industries exist because of existing IP laws, despite no proof of any causal link.

When you look specifically at "copyright," you see they lump in all sorts of stuff that would be made without copyright -- including advertising, public relations, scientific services, performing arts companies, newspaper reporting, "internet sites" and computer system design. Yes, some of those probably involve the use of copyright, but how much? The MPAA doesn't care, it counts them all for its team.

Second, note the claim that these are "direct and indirect jobs"? This is a standard trick of the MPAA. For years they go around citing "2.1 million jobs" implying that's how many the movie industry employs. Except, it's not. The actual number is 374,000. So they started adding in a hell of a lot of "indirect jobs," taking credit for the florists and hairdressers and food delivery folks and all of that. As if "copyright" had anything to do with any of that.

As for the US being "the leader" in this arena, as recently noted, many of the biggest entertainment companies are actually foreign owned, meaning that a significant portion of any profits is likely flowing out of the US.

MPAA member companies welcome a continuation of the ongoing discussion of the importance of copyright. We welcome a discussion based on facts, experience, and rational analysis.

Coming right after the bogus numbers and claims, that's a pretty rich statement.

And we are confident that such a discussion will result in a renewed affirmation of the benefits to all of a copyright law that encourages and rewards creativity and breakthrough innovation, promotes distribution and enjoyment of America’s most beloved stories and characters, and takes a firm stand against the criminals who would rob us of those.

I'm still waiting to see where copyright rewarded breakthrough innovation. I can give you a long list of where it hindered it. It's also not at all clear that today's copyright "encourages and rewards creativity." It clearly rewards some aspect of creativity, but as we've seen a decline in respect, and an increase in infringement, we've also seen a massive increase in content created. That, at the very least, suggests that there are other incentives at play. Furthermore, we reported on a recent study showing musicians making approximately 6% of their revenue from efforts that directly involve the sale of copyrighted works -- suggesting that there are numerous ways of "rewarding creativity" that have little to do with copyright. In fact, a strong argument can be made that with a focus on copyright, you end up with many fewer creators rewarded. But when you focus on other methods of supporting artists, the numbers go way up.

Also, really, if we're going to be talking about a discussion based on "facts" and "rational analysis," we really could do without the bogus and misleading use of words like "criminals" and "rob" for actions that are most frequently civil law issues, at best, and are potentially about infringement, not stealing. It's the little things like this that determine whether the debate will be an honest one or pure propaganda.

Copyright Empowers Creativity, Innovation and the Dissemination of Knowledge
The promise of the opportunity to make a living doing what they love is what gives a creator incentive to transform his or her new ideas into reality and to take that new creation to the public. Creators deserve to be secure in the knowledge that they have a fair chance to earn a wage from their work and investment -- the works that contribute both to our shared culture and our national economy. The Constitution itself recognizes that the public’s interest in creativity and the dissemination of knowledge is best served by the incentives that result from recognizing authors’ and creators’ rights. If our creative sector is to remain the envy of the world, the law must ensure these public-interest purposes of copyright are not undercut.

The promise of the opportunity to make a living gives creators an incentive to create and distribute their works. But just one incentive. And there's fairly strong evidence that it's actually fairly far down the list of incentives that lead to the creation and distribution of creative content. We have a pretty big wide internet filled with content that was created for no direct remuneration. For many, many people, the incentive to create is not because of money, but because they can't not create.

Second, this entire paragraph assumes -- wholly without support -- that copyright is the only way to make money from creation. That's ridiculous, and easily shown to be false (as noted above with the 6% number). Lots and lots of people make money via their content without ever needing to make use of the power to exclude granted to them under copyright.

As for creators deserving a "fair chance to earn a wage from their work and investment," that's absolutely true, but what does that have to do with copyright? After all, under the "old" system that the MPAA used, the vast, vast, vast, vast, vast majority of people who wanted to become filmmakers had no chance at all to earn a wage from their work, because the only way to make a movie was to have one of the MPAA gatekeepers grant you permission. The fact is that most people who want to earn a living making content have failed at it. This has always been the nature of the content business -- and it's a point that the MPAA and other copyright maximalists never want to admit. Also, considering that thanks to the infamous practice of Hollywood accounting, we're told that most films lose money, then, it seems that the existing system isn't working to the level that the MPAA claims is necessary.

Finally, the Constitution says no such thing. It makes no claim that the public's interest is "best served" by copyright. All it does is allow Congress to create monopoly privileges such as copyright if it believes those serve the public. That's it.

Take Digital Rights Management technology, for example. Without the protection of effective DRMs, the business incentive to develop new and innovative distribution models, like UltraViolet, across multiple devices and platforms is lost. The technological and legal protections provided by current law allow content to be portable, enabling consumer flexibility on how to access it. Under current copyright law, the choice and cost curves are both bending in the consumer’s direction.

Try to hold back the laughter here. After all, we're having a discussion based on "facts, experience and rational analysis." And, yes, the MPAA is trying to argue that DRM itself is a form of innovation, and they're highlighting Ultraviolet, a crappy DRM system that no one wants, that tries to enable a tiny portion of the benefits that everyone else on the internet figured out how to get for themselves a decade earlier. That's not innovation. No one needed UltraViolet DRM to distribute content "across multiple devices and platforms."

Limiting what consumers can do is never innovation. It's about trying to limit the impact of actual innovation.

Copyright Benefits Consumers by Promoting Free Markets and Competition
Copyright as it is reflected in both the Constitution and in current law recognizes that the public benefits from a competitive environment in which clearly-defined property rights enable the market to drive the creation and dissemination of creative woks. These rights foster competition because they incentivize creators to take risks. They encourage economic development and economic diversity. That’s good for the consumer and good for the economy.

Yet another trope. As was aptly discussed in Derek Khanna's report for the Republican Study Committee, copyright is the antithesis of promoting a free market. The problem, here, is that the MPAA is pretending that any monopoly makes sense as "property" to create a market. But any competent economist will tell you that's hogwash. We can create all sorts of artificial monopolies to create markets to prove how ridiculous this is. For example, how about we put a pricing mechanism and the ability to exclude people from accessing air to breathe? We've now created "property rights" and a "market" for air -- and I'd imagine it would be quite a lucrative one, given the demand.

And, of course, that would create "a competitive environment" that would "foster competition" by "incentivizing air creators to take risks."

But, of course, most sensible people would recognize that creating such an exclusionary right for something that is abundant is not a form of a free market, but rather is a massive inefficiency in a functioning free market.

The MPAA can argue, perhaps with (or perhaps not) reasonable support, that a system of artificial limited scarcity is a better net result, but it's not a free market by any means. They really should stop pretending it is one, because it really takes away from their point. They should be arguing the facts: that copyright is basically a mercantilist system of monopolies, emerging from the mercantilist era of protectionism. They can then make the argument for why that works better than an actual free market, and that would be an interesting debate. But pretending that the exact opposite of a free market is a free market is just silly.

Enforcement of existing copyright laws is also essential to ensure that illegitimate websites that profit from the illegal sale of content do not have an economic advantage over the innovative platforms that our companies develop to deliver high-quality content to consumers. Undermining copyright law would serve as a disincentive for future technological development and would harm consumers.

As has been shown time and time again, infringement is generally a leading indicator of innovation. The reason that there are so-called "illegitimate websites" that are succeeding is based on one factor alone: the industry's own failure to provide convenient services that consumers want. So they seek other convenient services. If the industry focused on providing more value (as they grudgingly do over time) they'd easily compete with and beat those illegitimate sites and many more people would pay. That is, enforcement has been shown to do very little in terms of encouraging technological development. Infringement, on the other hand, has had a major role in driving many key innovations that are incredibly consumer friendly.

Look, for example, at the music industry. The labels fought any digital distribution for years, as newer, more innovative and increasingly convenient "unauthorized" offerings showed up. Left to their own devices, the labels created two of the worst music distribution services imaginable, MusicNet and PressPlay, which no one bothered to use. It was only when pushed by competition from better online offerings that the industry finally allowed innovation to happen, leading to increasingly innovative solutions, including things like Spotify today, which owes its history to things like Napster.

If not for such infringement, consumers would still be living in the dark ages, with the labels trying to keep any serious digital distribution from happening at all.

Copyright Supports an Internet that Works For Everyone
There are those who would place the value of the Internet at odds with copyright. We reject that false choice. Freedom of expression is at the bedrock of both the Internet and the creative community. In considering policies surrounding the Internet, we need to recognize what the Supreme Court has stated repeatedly – that copyright is itself an “engine of free expression.” Not only does copyright itself promote creativity, but creative content has plays an important role in helping to promote the growth of the Internet. As we look at policy affecting the Internet, we must advance policies to promote an Internet that reflects the values that have been fundamental to us for hundreds of years, including freedom of expression, property rights, and protection of the rights of individuals. Good policy stays true to these values, resisting efforts that would pit one against another and recognizing instead that these values are mutually reinforcing.

I don't think that copyright is at odds with the value of the internet. It seems to me that it's the MPAA setting up a strawman here. However, certain aspects and uses of copyright almost certainly do go against the values of the internet, which can be seen in the way people use the internet to inadvertently infringe all the time. Just look around at how many YouTube videos say "no copyright intended" while clearly infringing on someone's copyright.

As for "the engine of free expression," just because the Supreme Court says something, does not make it a reality. If we look at the last 100 years of history, and look at how much "expression" was created because of copyright, and compare it to how much "expression" was created because of technology (or, hell, limit it to just the internet), the technology/internet will win by a long shot.

The internet is, at its core, a tool for expression. That is undeniable. And, if we're going to talk about "property rights" and "protection of the rights of individuals" it needs to start with our rights to express ourselves, along with our rights to own what we legally posses. Copyright has gone against those rights in so many ways. It stops us from actually owning the music we thought we'd "purchased." It stops us from modifying our phones or video game consoles. It stops us from shifting a movie we purchased on DVD to our computer. So, sure, if we're going to protect "property rights" and the "rights of individuals" let's actually do that.

The reality, of course, is that's not what the MPAA is asking for at all. They want to to protect copyrights, not actual property rights. And they want to protect the exclusionary privileges of the large copyright holders, not the rights of individuals. However, if they're going to claim that they want to support free expression, property rights and protection of the rights of individuals, then I agree. I just doubt they'll agree with what that really means.

Copyright Provides Creators with Modern Protections
Copyright law evolves over time. The last major overhaul of copyright law was the result of decades of Congressional work, much of it focused on fashioning a law that would be flexible enough to accommodate future technological change. But technology and the marketplace often evolve faster than the law. Fortunately, copyright law also provides the space for the private sector to collaborate to develop more immediate solutions. Content creators and intermediaries can and do engage in meaningful conversations about how to protect a secure, legitimate online environment for both creators and audiences. Any discussion of copyright law must include recognition of the critically important role that voluntary agreements play in ensuring the content and tech industries can both remain nimble in a rapidly-changing world.

The whole basis for this point is misleading. The role of any system of copyright should not be about protections, but about what creates the greatest overall benefit. The overall incentives should be aligned. The public wants great creativity, and creators want to create. So let's focus on what leads to that result, rather than jumping to the conclusion that "protection" is the key. Protectionism is often a way of limiting markets, rather than helping them grow to their full potential. So, why aren't we looking at what will incentivize the most innovation and creativity, rather than what will do the best job of protecting and locking things up?

As for flexibility -- we agree that any law needs flexibility to adapt to changes in technology, but it's laughable to think that's true today, given how often we've seen the MPAA flip out about changes in technology, and run screaming to Congress that the law isn't working for them. 15 new anti-piracy laws in the past 30 years? That's not a flexible system. A flexible system is one that doesn't insist that every bit of content must automatically be put under a copyright regime. A flexible system is one that doesn't mean a generation never got to see new works enter the public domain. A flexible system is one that doesn't tell people that downloading 24 songs may make them liable for over a million dollars. That's a broken system.

Copyright Provides for Incentives and Accountability
The public interest in the creation of and dissemination of creative and innovative products cannot be served in an environment in which some are free to build businesses based on the infringement of the rights of others. As infringement grows more widespread, sound copyright policy must recognize that the solution to such problems is
in society’s broad interest. Any review of copyright must focus on whether the system as a whole provides for meaningful accountability on the part of those who infringe the rights of others, and whether there are adequate incentives for cooperation and accountability among other stakeholders.

A meaningful system recognizes that infringement is not the problem -- a failure to serve the public with what they want is the problem. A meaningful system recognizes that spending time, resources and efforts on stopping the unstoppable -- especially when it has little long term impact on the bottom line -- is not a sound or reasonable policy. The public's interest is being served all the time -- in large parts by innovation that is often driven by these services that the MPAA hates so much.

And, again, this is the same MPAA that argued that the public's interest would be harmed by the VCR. And by TV. And by the DVR. And by YouTube. So it is hard to take these claims seriously.

Hopefully, most of the folks in Congress receiving this particular document will do some research on what's being said, and will realize that the MPAA's position is not one to take seriously. It is not one based on facts, experience or rational analysis. It is, instead, based on self-interest of a small sector of the economy -- a few large movie studios with a history of exploiting content creators for their own benefit. If we're going to have a real discussion on copyright reform, it has to be based on actual facts, not MPAA-style theatrics.

The principles remain in place DESPITE easier copying.

"often against their own best interests." -- BALONEY. All the industry has done is say that EVEN with it easier than ever to copy, the BASIS of copyright stems from WHO creates it, AND that ALL of the rewards should go to the creator, AND that rampant piracy WILL ruin the entire system. -- Yes, they've self-interest there: so what?

Gotta admire your plucky resolve to prove you've been right all along, Mike, but in fact, you've not affected the industry at all! You're JUST a kibitzer.

Take a loopy tour of Techdirt.com! You always end up same place!http://techdirt.com/
Where Mike's "new business model" (file hosts like Megaupload) is to grift on income streams that should go to content creators -- and then call the creators greedy!06:31:11[h-962-2]

Re: Re: The principles remain in place DESPITE easier copying.

@ "I guess the RIAA should get to paying all those artists who created all that music and never got royalty payments, then, hmm?"

THEY SHOULD INDEED! If you'll take time to READ what I've written, if there's anyone here who wants to cut out greedy corporate types, it's ME. -- I'm for hanging them for crimes committed (after a fair and public trial). Top that, kibitzer.

Re: Re: Re: The principles remain in place DESPITE easier copying.

"if there's anyone here who wants to cut out greedy corporate types, it's ME. -- I'm for hanging them for crimes committed (after a fair and public trial)."

Except they'll never receive a "fair and public trial, sicne they're perceived as "too big to prosecute", boy.
So you make a "safe" statement against your corporate masters knowing that it'll never come to pass.

Re: Re: The principles remain in place DESPITE easier copying.

And maybe pay back those artists who wound up owing the record companies money after making hugely successful songs that brought in mucho moola. If other companies tried that with their employees, the unions would be pitching screaming fits over it, which may be why politicians are consistently trying to destroy the unions.

This is the real world, where we all get to decide our own morality. FTFY.

Everybody decides their own morality, that's how morals works. Only an idiot would suggest it's otherwise.

"...and things such as laws or norms are meaningless."

You suggest that as if laws and norms are always in agreement with each other. Laws change all the time because societal norms have changed and the law needs to catch up. Copyright is a perfect example. Infringement is illegal, but it is also a completely normal activity for a huge and growing percentage of the populace. Many do it with full knowledge it's illegal, many do it without even realising they're technically breaking the law.

"Some examples of Jim Crow laws are the segregation of public schools, public places, and public transportation, and the segregation of restrooms, restaurants, and drinking fountains for whites and blacks. The U.S. military was also segregated."

That's it. You found one example that completely destroys the possibility that laws represent morals. Jim Crow proves that ALL laws EVER CREATED are completely devoid of any morality whatsoever. You must have gone to the Mike Masnick School of Idiotic Logic. Bet you graduated at the top of the class even.

No you're the moron here. Norms and laws are independent of one another, as JMT stated 5 comments above. I know you're aware of his comment, but you probably stopped reading after the first sentence. Jim Crow laws, like slavery are an example of where morals and law came into disagreement. It's a concept which really doesn't require much thought to understand. Bruce Schneier elaborates wonderfully on this concept in his book, Liars and Outliers.

Re: Re: Re: The principles remain in place DESPITE easier copying.

Even more so. Pirates infringe on the rights of a specific subset of the population. Current copyright law (and even more so with the various additions to it that keep getting discussed) infringe on the rights of everyone.

Re: The principles remain in place DESPITE easier copying.

This has been cried and crowed since at least the 50's, when reel-to-reel tape recorders became affordable.

We heard it again in the 70's about cassette tapes: "home taping is killing the music industry."

We heard it again in 1976, with Bill Gate's famous "letter to pirates." He whined about "rampant piracy" then and the ruination it would bring.

Former MPAA head Jack Valenti very famously overreached when he proclaimed the death of movies via the new VCR, stating "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

In 1998, the RIAA and Metallica proclaimed Napster and file sharing to be the absolute DOOM of all music.

In 2006, the MPAA again decried "piracy" as the doom of the movie industry, due to the "rampant" nature of file sharing on the internet.

It's been 60 years, nearly 50 since the cassette, nearly 40 since Bill Gate's screed, nearly 30 since Jack Valenti proclaimed the death of movies, and going on 20 years since Napster.

I ask you to answer this question or never complain about the subject again:

Where is the ruination? Please, enlighten us. It's been MORE than enough time, 6 decades. Surely, if ruination were to come due to people sharing movies/music, SOMETHING would have fallen apart by now and been laid waste.

I know you wont answer, because you didnt the last time I put this to you last week, and you dont exist to actually do anything useful with your life, or even back up ANY claim you ever make.

Re: The principles remain in place DESPITE easier copying.

[The copyright industries have frequently attacked the development of new technologies] "often against their own best interests." -- BALONEY. All the industry has done is say that EVEN with it easier than ever to copy, the BASIS of copyright stems from WHO creates it, AND that ALL of the rewards should go to the creator, AND that rampant piracy WILL ruin the entire system. -- Yes, they've self-interest there: so what?

The basis of copyright is the promotion of science, so as to serve the public interest. It is best to initially vest copyrights in the authors that create the works in question, but the authors are not the creators of copyrights, they need not receive copyrights if it would not be in the public interest to grant them, and in some cases we have a mildly sketchy practice of designating some other party the author for vesting purposes than the person who has the skill to create and whose hand does the work. If this practice is okay, perhaps under certain circumstances, it would be best to vest the rights in a completely different party. (It would be unconstitutional but that and what is best for the public don't necessarily track perfectly). If it is not okay, feel free to denounce the practice of works made for hire. The point is that copyright doesn't really "stem from who creates it" (Crazy person capitalization removed).

And not all of the rewards go to the creator, nor the copyright holder, who is actually the party to whom rewards may be funneled. For example, first sale doesn't provide such rewards. Not do fair uses. Nor do a number of other exceptions to copyright, nor uses of works that lie outside of the realm of copyright altogether.

And it remains to be seen whether rampant piracy will ruin the whole system. It hasn't yet. Frankly, I'd like to see a proper experiment conducted in which we try it out for a few centuries to see how it compares. After all, there were plenty of works being created and published before copyright, and they didn't have the advantage of all the better technologies and larger audiences we have now. Just think how many more plays Shakespeare could've written with the aid of a rhyming dictionary and a word processor.

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And they want to protect the exclusionary privileges of the large copyright holders, not the rights of individuals.

You do realize that "exclusionary privileges" is an oxymoron, right? Privileges only allow someone the liberty to engage or not engage in a particular activity. Rights are what allow someone to exclude others from engaging in or not engaging in a particular activity. That's why the Constitution refers to "exclusive rights." A right permits the holder to exclude others, while a privilege does not.

Are you purposefully using the wrong term, or do you just not understand the difference? I'll assume it's the former because, well, you aren't an honest person.

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So my right to free speech permits me to exclude you from it? I don't think you know what you're talking about. Copyright is a privilege to engage in excluding others from copying. You can keep people from copying your stuff, or you can let them copy all they want. That's a privilege, and when you exercise that privilege, you are actually taking away the natural rights of others.

Copyright isn't a right you are granted. It's a right taken away from everyone else so that you can have exclusivity in copying and distribution. Everyone is free to copy and distribute what ever they want, until copyright comes in, and then suddenly their rights are removed.

Copyright isn't the granting of a right to a single individual/entity; it is the removal of rights from all but a single entity.

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Copyright is a privilege to start off with. Congress doesn't have to give it to you. You don't have a right to a copyright. Current law allows you to get it, but it could be taken away from you. That privilege congress gives you is the ability to exclude others from copying and distributing what you have a copyright over. In order to give you that privilege, congress has to take away rights from others.

Further, if you tried to stop me from making copies of and/or distributing copies of works in the public domain, then your conduct would not be immunized from liability. But if you have a copyright on the works I am copying/distributing, then that same conduct is immunized from liability. Your own definitions support that.

Copyright is a privilege, not a right. In order to even have copyrights, you must remove the rights of others to copy and distribute works. But with a copyright you are given "the legal freedom to do or not do a given act", that act in this case is to stop me from copying and distributing your copyrighted works. You can't stop me from doing it with someone else's copyrighted works. If I were selling a bunch of bootlegged DVDs that you didn't own a copyright onn, and you took them from me, you would be liable for theft. If the copyright holder did the same, I'm sure they would be immunized. Why? Because it's a privilege they get. The privilege to exclude.

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You don't have the slightest idea what a privilege is, and you've got this completely wrong. Privilege is a right granted as a benefit. The two terms can be used almost interchangeably, with the one difference that privilege carries with it connotations of exclusion, whereas rights are universal.

That's what privilege means: Private Law.

It is a privilege for military officers to exclude enlisted men from certain venues, not a right. It is a privilege to drive on the road, excluding people who are unqualified to operate a vehicle.

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You don't have the slightest idea what a privilege is, and you've got this completely wrong. Privilege is a right granted as a benefit. The two terms can be used almost interchangeably, with the one difference that privilege carries with it connotations of exclusion, whereas rights are universal.

That's what privilege means: Private Law.

It is a privilege for military officers to exclude enlisted men from certain venues, not a right. It is a privilege to drive on the road, excluding people who are unqualified to operate a vehicle.

Privilege is the correct term here, and you're an idiot.

LOL! Huh? A privilege is not a right, so when you say "privilege is a right granted as a benefit," you're not making any sense. I'm using the terms in their technical, legal sense.

From Black's:

Right = "A legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong."

Privilege = "A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability."

A right gives its holder an enforceable claim against another, while a privilege merely immunizes its holder from a duty it would otherwise have.

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I did say that two could be used almost interchangeably, because in common usage the definition of privilege encompasses some meanings of "right."

You also seem to be cherry-picking those definitions from Black's, although I don't have one to hand. That is certainly not the all-encompassing definition of right in Black's. Context matters in legal definitions. If you're going to quote Black's for the definitions, please quote the entire entry for the word.

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Since you're probably not going to reply, I'll just update with the information on privilege from the online Law Dictionary, featuring Black's Law Dictionary at http://thelawdictionary.org/privilege/

You can note immediately that the word "right" is given in definitions of privilege four times. The hovertext, quick definition of privilege is, "A right, authority or benefit that an individual is entitled to based on status, credibility or by the operation of the law."

To cherry-pick my own subsection:

An exceptional or extraordinary power or exemption. A right, power, franchise, or immunity held by a person or class, against or beyond the course of the law.

You'll note that the common theme among the definitions here (which I have conveniently sourced for your reference), is that the execution of privilege requires an exclusion to others of the rights grated thereby.

Re: Re: Re: Re: Re:

Since you're probably not going to reply, I'll just update with the information on privilege from the online Law Dictionary, featuring Black's Law Dictionary at http://thelawdictionary.org/privilege/

You can note immediately that the word "right" is given in definitions of privilege four times. The hovertext, quick definition of privilege is, "A right, authority or benefit that an individual is entitled to based on status, credibility or by the operation of the law."

To cherry-pick my own subsection:

An exceptional or extraordinary power or exemption. A right, power, franchise, or immunity held by a person or class, against or beyond the course of the law.

You'll note that the common theme among the definitions here (which I have conveniently sourced for your reference), is that the execution of privilege requires an exclusion to others of the rights grated thereby.

Using Hohfeldian jural relations, it's incorrect to define a right as a power, right, immunity, etc. since those are all distinct concepts.

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Using Hohfeldian jural relations, it's incorrect to define a right as a power, right, immunity, etc. since those are all distinct concepts.

And using astrophysics relations, all elements except hydrogen and helium are metals. I don't understand why you're trying to force very specific jurisprudence definitions onto a blog post discussing a leaked document written to specifically deceive politicians, and authored by industry con-men.

You're not making any point which is relevant to the discussion. You're like an asshole pilot, trying to explain that actually, fluid dynamics governs both liquid and gaseous matter, to a man drowning in something which everyone else knows is a fluid.

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Snorezville. Mike clearly is saying that rights and privileges are distinct things with no overlap. He says that copyright is a privilege and that fair use is a right. Of course, he never actually defines these terms or explains what he means. He only cares about the rhetoric. He chooses the word that best fits the conclusion he wants other people to arrive at. I am using the words in a precise manner. It's not being an asshole. It's being precise (something Mike cares nothing about).

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I did say that two could be used almost interchangeably, because in common usage the definition of privilege encompasses some meanings of "right."

You also seem to be cherry-picking those definitions from Black's, although I don't have one to hand. That is certainly not the all-encompassing definition of right in Black's. Context matters in legal definitions. If you're going to quote Black's for the definitions, please quote the entire entry for the word.

"privilege n: [Latin privilegium law affecting a specific person, special right, from privus private + leg- lex law]
1 : a right, license, or exemption from duty or liability granted as a special benefit, advantage, or favor"

"priv·i·lege (prv-lj, prvlj) n.:
1.
a. A special advantage, immunity, permission, right, or benefit granted to or enjoyed by an individual, class, or caste. See Synonyms at right.
b. Such an advantage, immunity, or right held as a prerogative of status or rank, and exercised to the exclusion or detriment of others.
2. The principle of granting and maintaining a special right or immunity: a society based on privilege."

priv·i·lege
[priv-uh -lij, priv-lij] Show IPA noun, verb, priv·i·leged, priv·i·leg·ing.
noun
1.a right, immunity, or benefit enjoyed only by a person beyond the advantages of most: the privileges of the very rich.
2.a special right, immunity, or exemption granted to persons in authority or office to free them from certain obligations or liabilities: the privilege of a senator to speak in Congress without danger of a libel suit.
3.
a grant to an individual, corporation, etc., of a special right or immunity, under certain conditions.
4.
the principle or condition of enjoying special rights or immunities.
5.any of the rights common to all citizens under a modern constitutional government: We enjoy the privileges of a free people.

And more:

Synonyms
1. Privilege, prerogative refer to a special advantage or right possessed by an individual or group. A privilege is a right or advantage gained by birth, social position, effort, or concession. It can have either legal or personal sanction: the privilege of paying half fare; the privilege of calling whenever one wishes.

Collins English Dictionary:

privilege (ˈprɪvɪlɪdʒ)

— n
1. a benefit, immunity, etc, granted under certain conditions
2. the advantages and immunities enjoyed by a small usually powerful group or class, esp to the disadvantage of others: one of the obstacles to social harmony is privilege
3. any of the fundamental rights guaranteed to the citizens of a country by its constitution

Apparently the answer to all those dictionaries is "LOL! Huh? You're not making any sense!

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Then why did you first say that someone who made the same claim wasn't making any sense? Now you say that it's done all the time.

Perhaps you're the one not making any sense. It's things like this that show why you're not worth the brain cells to debate you. Even when you're proven to be completely wrong (and an obnoxious prick in the process), you pretend your right.

That's called being insufferable. If you want, I can define that word for you too.

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Yes there are lots of definitions. Mike is not using a definition that says rights and privileges are the same thing when he claims that copyright is a mere privilege while fair use is a full-fledged right. He is obviously saying those two things are distinct. He never defines the terms, of course. I am offering a commonly excepted distinction between the two to show that Mike's made-up, undefined distinction is rhetorical bullshit.

A bundle of intangible rights granted by statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale.

Plus, all the early proto-copyright laws (to e.g. John Usher, William Billings, and Andrew Law) were all described as "printing privileges."

Finally, the Constitution says no such thing. It makes no claim that the public's interest is "best served" by copyright. All it does is allow Congress to create monopoly privileges such as copyright if it believes those serve the public. That's it.

The Constitution clearly reflects the Framers' belief that granting authors exclusive rights is the best way to promote the progress of science. That's why the Framers explicitly provided the means. It doesn't just say "promote the progress" in any way Congress sees fit. It tells Congress the exact means of doing so. This is pretty basic. It amazes me that you deny it. (Actually, it doesn't amaze me at all. What would amaze me is if you admitted it.)

The founders weren't n00bs.

Copyright is optional. It is something that the federal government can choose to do. It's not something they are required to do. Obviously, the people who drafted the Constitution realized that little monopolies on creative output were no the only option.

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The harping on what the founders/framers/whatever you want to call them said is getting a bit stale. The fact that we have amended the constitution so many times means that they got a hell of a lot wrong.

And even assuming they WERE right about copyright at the time(debatable), the copyright of today is MUCH different. If you want to go back to the original ideas, let's start by rolling back the copyright term to 14 years, plus a 14 year extension if refiled. And then fine every company who sued over stuff that would have been in the public domain otherwise for violating the original idea. Oh wait, you don't like that aspect of the original intent, so you'll just ignore that bit, won't you?

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The harping on what the founders/framers/whatever you want to call them said is getting a bit stale. The fact that we have amended the constitution so many times means that they got a hell of a lot wrong.

Article I, Section 8 has never been amended. None of the enumerated powers have ever been changed.

And even assuming they WERE right about copyright at the time(debatable), the copyright of today is MUCH different. If you want to go back to the original ideas, let's start by rolling back the copyright term to 14 years, plus a 14 year extension if refiled. And then fine every company who sued over stuff that would have been in the public domain otherwise for violating the original idea. Oh wait, you don't like that aspect of the original intent, so you'll just ignore that bit, won't you?

If things are so different now than they were then, why would you think it makes sense to going back to doing things as we did things then? I'm not sure I get your last point. What about the "original intent" do I ignore? The intent was to empower Congress to give authors exclusive rights. That hasn't changed.

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Neither had any other part, until it was. Not exactly a sound argument there.

The fact that Article I has never been changed in 220+ years is a valid response to the argument that "we have amended the constitution so many times means that they got a hell of a lot wrong." There is no evidence that we got Article I wrong.

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Actually, I think they did get it wrong. They didn't really want it in there at all, as it causes so many problems (as we can see today) with rather dubious benefits. It's included as a political compromise, and they tried to put enough caveats and weakness in it so to minimize the damage it would cause.

What they got wrong is including it at all. But, since it had to be included, they made the further error of not weakening it enough.

Copyright law as it exists today is, essentially, exactly what the founders were afraid would happen.

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Those outliers are on a direct trajectory towards becoming the SOP of normal policing activities by the very organizations that exist to serve and protect, in the name of the Constitution, the very people that finance their existence.

His question stands.

Copyright, a privilege, as intended in Article 1, is rapidly creating conflict in direct confrontation to enumerated rights.

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So the question becomes, 'how effective have those exclusive rights proven to be in expanding progress?', or put another way, 'what is created due to copyright, that would not have been created otherwise?'

And please, don't repeat the tired argument of 'copyright exists, stuff gets created, therefor copyright is responsible', as that makes just as much sense(namely none) if you switch in anything else with 'copyright', making the argument useless. Might as well say 'people have beards, stuff gets created, therefor beards are responsible'...

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The Constitution clearly reflects the Framers' belief that granting authors exclusive rights is the best way to promote the progress of science. That's why the Framers explicitly provided the means.

Times change, and the framers of the Constitution knew that, which is why they provided ways for it to be ammended. There's quite a few things that mostly everyone now agrees were included in the Constitution that were incorrect or missing entirely.

You're quite focused on the means the framers supplied. But the means is useless if it is not achieving the purpose for which it was stated. If the means (temporary monopoly privilege) is hindering the purpose (creation of works) then I'm quite confident that if the framers were still around, they'd be perfectly OK with scrapping those monopolies.

Actually, there's another argument here. Some of the framers suspected that granting monopoly privileges over works of the mind was problematic. Because of that, they linked the power they were granting to Congress to the purpose it was being granted for - and by limiting Congress, it was their intention to prevent exactly what we see with today's overreaching copyright laws.

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You're quite focused on the means the framers supplied. But the means is useless if it is not achieving the purpose for which it was stated. If the means (temporary monopoly privilege) is hindering the purpose (creation of works) then I'm quite confident that if the framers were still around, they'd be perfectly OK with scrapping those monopolies.

I agree that if the means identified are not fulfilling the given purpose, then the means should not be employed. Of course, the means are working remarkably well, so that's not really an issue. The progress is promoted wonderfully under copyright. The Framers nailed it. The creation of works is not hindered. There's so many new works being created now and culture is blossoming more than ever. The "sky is rising," haven't you heard?

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Of course, the means are working remarkably well, so that's not really an issue.

You can't just hand wave this away. Copyright is being used to suppress speech. Copyright is being used to hinder the creation of new work. Copyright is being used to stop new services and technologies, or to tax or slow them to uselessness.

Yes, new works are being created - in spite of copyright, not because of it. Every day we see more examples of it hindering. Every day we see more examples of overreach or copyfraud. They are no longer outliers.

This is a really simple concept. If copyright is hindering more than it is helping, it is not "promoting the progress" and needs to be fixed or scrapped entirely.

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The Constitution clearly reflects the Framers' belief that granting authors exclusive rights is the best way to promote the progress of science. That's why the Framers explicitly provided the means.

No, they put it in there because the states were fucking it up under the previous national government. Same reason why Congress gets to regulate commerce, establish uniform bankruptcy laws, establish standard national weights and measures, etc. If the states had done a good job with copyright, it would've been left to them. Whether the framers actually thought it was a good idea or not was irrelevant; Congress would get to decide that. And presumably the framers from Delaware disagreed; their state had no copyright laws. We don't know about Rhode Island, as they didn't send anyone. And some of the delegates didn't sign it, probably for other reasons, but who knows.

Next you'll probably say that the First Amendment is first because it was most important.

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No, they put it in there because the states were fucking it up under the previous national government. Same reason why Congress gets to regulate commerce, establish uniform bankruptcy laws, establish standard national weights and measures, etc. If the states had done a good job with copyright, it would've been left to them. Whether the framers actually thought it was a good idea or not was irrelevant; Congress would get to decide that. And presumably the framers from Delaware disagreed; their state had no copyright laws. We don't know about Rhode Island, as they didn't send anyone. And some of the delegates didn't sign it, probably for other reasons, but who knows.

The benefit of uniformity explains why there's a national copyright law. But that doesn't explain why the means provided are the grant of exclusive rights.

Next you'll probably say that the First Amendment is first because it was most important.

I think all the Amendments are important, but you're right, I think the First Amendment is probably the most important. I don't know why it's listed first. Never thought about it.

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The benefit of uniformity explains why there's a national copyright law. But that doesn't explain why the means provided are the grant of exclusive rights.

Habit, probably. The only copyright laws in the world prior to that we're those of 12 states and England, and the states' largely followed the English example. And that was the mechanism that they used. And it's a clever system, don't get me wrong, but you might have to go back to the old Venetian patent law to find serious thought on the whole affair prior to the drafting of the Constitution.

I think all the Amendments are important, but you're right, I think the First Amendment is probably the most important. I don't know why it's listed first. Never thought about it.

Random chance and politics. The drafts of the Bill of Rights had things in various orders, including breaking what we know of as the First Amendment into two separate ones. Eventually the draft submitted to the states had twelve proposed amendments. Ten of them, numbers 3 through 12, were ratified. So it would've been third if they all and gotten enough votes. Eventually the second one got ratified as the 27th Amendment. The original first, dealing with apportionment, likely never will be ratified.

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If you're saying that I forgot about the Statute of Anne, I did not.

But while that does have the first instance of authorial copyright, the idea of granting the right to the person responsible probably came, ultimately, from the Venetian Patent Law of 1474. (Although like a lot of early patent laws it also granted protections to people who introduced new technologies from elsewhere)

Anne was written in about a month, plus some changes as it moved through Parliament, and while the core idea of copyright that it presents is good, there are issues with the implementation. So while it did change who the right was vested in, I'm not confident that it evidences some great genius so much as it does the general dislike of the publishers at the time.

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We already have to worry about our children getting sued for hundreds of thousands of dollars for including quotes in their school book reports. I would say it has gotten way, way past 'silly' and into the realm of incomprehensible.

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We already have to worry about our children getting sued for hundreds of thousands of dollars for including quotes in their school book reports. I would say it has gotten way, way past 'silly' and into the realm of incomprehensible.,/i>

What is incomprehensible is that you'd expect anyone to believe your absurd FUD. I know you guys are desperate, but wow!

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If only that were true as then we'd have a truly tangible issue. As it is copyright is stifling our children, potentially criminalizing their actions and continuing to limit and force their exposure to "entertainment" through "controllable" and "licensed" platforms whose primary purpose in existing is force feeding them advertising for profit and story lines manipulated for propaganda.

I'd venture that copyright is, in fact, harming our children, their futures and as such our potential as a race.

If we truly want progress we should limit the present reach and direction of copyrights in a meaningful and powerful way.

A bunch of folks gathering up all the copyrights they can combined with all they've acquired along the way in order to squeeze every last penny out of them for an eternity - that's what copyright maximalism represents, that's what it has become, that is what it strives for - self engorgement and self preservation.

Everyone here save the fringe duly and truly respects and appreciates an artist, however, a strong-armed, overly bearing "representative" body is something that has all but run its course and I will strike down upon thee with ... wait.. sorry, something about cats.

the only way to counter the documents left behind in 'all congressional offices' is to go behind them and leave contradicting documents in every office as well. if there isn't an equal or greater amount of evidence that throws all the industries bogus claims out the window, who are the politicians going to believe? i mean, be honest, they cant think for themselves so are very easily led/influenced and a few $1000 is a big incentive to get the vote going the way it's wanted. i doubt, however, if they have too much to worry about. the opportunity to make serious, sensible amendments went down the pan as soon as Pallante opened her mouth, coming out with the usual 'we have to protect the entertainment industries. it's more important than any other in the USA and the World!!

<>i>Furthermore, we reported on a recent study showing musicians making approximately 6% of their revenue from efforts that directly involve the sale of copyrighted works -- suggesting that there are numerous ways of "rewarding creativity" that have little to do with copyright.

Really Masnick? Using the music industry to debunk the motion picture industry. I guess you see a lot of opportunities for film crews to go on tour and sell t-shirts that are underexploited.

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No, he's using an example from the copyright lobby to tackle a general argumentation from the MPAA. If they had not generalized then your trolling might make some sense. But hey, go to the nearest grocery store as soon as possible, piracy is rampant, the MPAA is doomed and since grocery stores depend on them we won't be able to buy sweets very soon!

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I would suggest the MPAA pay royalties to supermarket check-out clerks if they really want to prove they benefit from copyright...but then the clerks would probably get more in royalties than the people who actually worked on the films.

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Ah. Well, then I guess if I were a woodchuck I would chuck the MPAA because I can't chuck wood anyway, which is good. A good chucking woodchuck that chucks good always chucks what sucks as any good chucker would, as they should, which is good.

Thanks for clarifying. It is no wonder they're so misunderstood. The MPAA that is, not woodchucks and not trees though it does seem the MPAA are good upchuckers. Their vomit is vile.

Must Create...

For many, many people, the incentive to create is not because of money, but because they can't not create.

This is the part that I think needs to be stressed to death. Most people who create do so because they have to; getting paid for it is a great perc when you can get it.

The idea of copyright as incentive to create is bullshit, and the people who say that are clearly not persons who feel the compulsion that creators do.

I'm so thrilled to have lived long enough that high quality video, animation, and recording studios can be had by us commoners with little overhead, and generate pro product. (When I started, a 2-oscillator 5-voice analog synth was $5k, in 70s bucks. Yikes!)

Well, here we go again...

I can't get "Les Miserables" to rip. I have the latest version of AnyDVD, which just came out today, and it can't do it. Neither can any of my other programs. Curiously, AnyDVD reports no structure protection, but DVDFab Decrypter says there is. The problem seems to be in VTS_08, which is also where the main movie is. I've checked the Slysoft forums several times today, but nobody's reported it yet. (Since I'm not registered in the forums, I can't report it.) Hopefully someone will and this problem will be fixed before I have to take the disc back tomorrow.

Re: Well, here we go again...

I'm wondering now if it's a bad pressing rather than a copy protection issue. That happens sometimes. If it's a bad pressing, it won't be able to be ripped no matter what. If it's not, hopefully SOMEBODY will come up with a solution. I'm surprised that the makers of decryption/ripping software aren't able to anticipate the next move in copy protection by now.
Whatever. I'm done for the day. Bedways is rightways now.

MPAA member companies welcome a continuation of the ongoing discussion of the importance of copyright. We welcome a discussion based on facts, experience, and rational analysis.

I was unaware there was ongoing discussion of this nature. As far as I can tell, the MPAA makes no effort to avail itself to anyone who wants to debate its positions, in any way, ever. Perhaps there was a typo, and they meant to say ungoing discussion.